Married But Unequal: Fighting Back Against the Indignity of DOMA

My husband and I have been happily married for the past two years. Luke was born in South Africa but has been living in the U.S. for the past 12 years. We live on a relatively quiet street in the Chelsea neighborhood of Manhattan. We’ve created a nice home together with our two boys: Andrew, who’s 4 years old, and Thomas, who’s 15 weeks old. They’re two of the cutest dachshunds you’ll ever meet.

Like other Americans married to foreigners, I set out to sponsor Luke for a green card as my spouse, so, on April 29, 2012, I filed a Petition for Alien Relative (otherwise known as a Form I-130) with the U.S. Citizen and Immigration Services for my husband. We were optimistic that we would at least get an interview like all other married couples, but no interview was ever scheduled. Instead, on Sept. 24, 2012, we received a cold, brief letter from the Immigration Service notifying us that our petition had been denied. Why? Because we’re both men.

I married Luke, my best friend, my soulmate, on June 25, 2010, in Milford, Connecticut, a small, beautiful New England town near the coast where we’ve spent a lot of summer weekends with close friends. (You may have read our previous post, “Can the U.S. Government Recognize True Love?”) A year later, almost to the day, we celebrated the legalization of same-sex marriage in New York, which brought the total number of states that permitted same-sex couples to marry to six (plus the District of Columbia). And soon, states from California to Maine may join them. But despite this progress, every married gay and lesbian couple is still profoundly unequal. We lack the 1,138 benefits, rights, privileges, and responsibilities that straight couples receive from the federal government, because of the so-called Defense of Marriage Act, otherwise known as DOMA, which denies federal recognition of lawful marriages between same-sex couples. Among them are veterans benefits, spousal protection from the estate tax, social security benefits for widowed spouses, medical coverage, and the ability to sponsor your spouse for a green card.

With the Obama administration’s explicit support of same-sex marriage and the decision by the president and the attorney general to stop defending DOMA in court (not to mention the growing acceptance from the public, Hollywood, and even the NFL), we set out on a path to try to get what every other couple wants — stability and the chance to plan and build a future together — but we cannot begin that journey with certainty until Luke has a green card.

The denial letter from Immigration Services clearly stated in an unapologetic, discriminatory tone that we are still, in fact, second-class citizens. Luke’s freedom to find security, independence, and a sense of “home” and work a 40-hour work week for a regular paycheck, get a driver’s license, and travel without anxiety was again curtailed.

We were denied without any review of our case (a service we paid for), which was particularly shocking. We were denied without an interview, without any effort to investigate the legitimacy of our relationship or Luke’s eligibility as an immigrant — in fact, without any consideration of the possibility that our marriage could possibly be legitimate, simply because we are both men. Granting us a preliminary review would not have required that the federal government stop enforcing DOMA. We did not expect our green-card case to be approved yet, and we knew that the government could not “recognize” our marriage for legal benefits. But we did expect this administration to treat us with dignity and respect by meeting with us to determine that we were otherwise eligible for Luke to receive a green card, so we believed that the time was right to petition and at least have our case put on hold, or “in abeyance,” until the United States Supreme Court finally rules definitively on the constitutionality of DOMA, which is expected to happen next year. Not only was rejecting us without knowing anything about us as a couple offensive, but it contradicted everything this administration had been saying about equality for gay Americans.

Regardless of how deep our love for one another runs, regardless of the fact that we were best friends for a year and a half before we started dating, regardless of the fact that I have never been more comfortable with anyone in my life, and regardless of the fact that there’s no one I’d rather spend my time with, the federal government has declared that our marriage doesn’t warrant the same respect paid to my straight friends’ marriages, because Luke and I are both men. That’s the only reason.

We just passed the 16th anniversary of the Defense of Marriage Act. After 16 years it’s clear that the only thing this law defends is institutionalized bigotry. The letter we received from the U.S. Citizenship and Immigration Services, a division of the U.S. Department of Homeland Security, solidifies that fact. It was all there in black and white. The letter states, “This Petition for Alien Relative (I-130), filed on April 9, 2012, seeks to classify the beneficiary as the spouse of a United States citizen…,” and continues to point out that only because we’re gay, we do not deserve the same rights as our straight friends:

Both you and the beneficiary are male. You married on June 29, 2010, in Connecticut. The INA does not specifically define the term “spouse” with respect to gender, but Section 3 of the Defense of Marriage Act (DOMA) states for purposes of eligibility for federal benefits, “marriage” means “only a legal union between one man and one woman as husband and wife” and the word “spouse” refers “only to a person of the opposite sex who is a husband or a wife.” … The DOMA applies as a matter of federal law whether or not your marriage is recognized under state law. Your spouse is not a person of the opposite sex. Therefore, under the DOMA your petition must be denied. We do not consider it necessary to determine whether your marriage is lawful under state law, or whether the beneficiary would be a “spouse” under the INA absent the DOMA, as these questions are not material to the appropriate disposition of the petition under the clearly applicable and controlling Federal statute.

“We do not consider it necessary…”: six words that hurt so much. “We do not consider it necessary…” It’s a complete disregard of every other aspect of our marriage. It throws out any consideration of every other element of our relationship that makes our marriage “healthy” and “strong” under any other definition. It was dismissive. And it was puzzling. The president of the United States has said that this law is unconstitutional, and seven times in the past two years it has been struck down by federal courts, and yet Immigration Services let us know that they did not consider it worth their time to determine whether we would be eligible for the green card if not for DOMA — a service we paid for in filing our petition.

This not only contradicts the words and deeds of the president, but it seems to reject recent decisions of the Board of Immigration Appeals that require Immigration Services to determine whether a same-sex couple have an otherwise valid marriage and would be eligible for a green card if not for DOMA. That the Obama administration allowed its agency to send us this letter defiantly insistent on discriminating against us as a gay couple reminded us that we must continue to organize and educate and urge our president to do better. It is unconscionable that President Obama, himself the son of a binational couple, could allow this offensive letter to have been sent under his watch.

Living in Manhattan, we live in a bubble. It’s easy to forget how other parts of the country may view our relationship, and we kind of like it that way. I have rarely felt so discriminated against, particularly given that I stayed in the closet for 23 years, and given that when I came out, I moved to West Hollywood and eventually to Manhattan, two of the more accepting places in the country. I now realize I was blindsided by my optimism. Are opposite-sex couples truly the only couples that can keep the institution of marriage strong? Is the institution of marriage really that fragile? Can DOMA defend any marriages by denying married couples like us access to the green-card process? Of course not.

I wrote last year about my own feelings of inadequacy when Luke and I decided to get married, believing all the hateful proclamations that marriage wasn’t something in which gay people were entitled to participate. But those feelings were short-lived and have long passed, and I know today that I’m a good husband. So is Luke. The letter we received from Immigration Services was hurtful, but it doesn’t detract from that fact.

The truth is that Luke and I defend marriage every day — our marriage, the one that matters to us the most. We do everything we can to keep our marriage healthy. And as happy as we are at this point in our marriage, I look forward to growing old with Luke and learning more and more about how to be a decent, honest, respectable man each and every day. We defend our marriage by deciding not to walk out after a disagreement or a fight. We defend our marriage by settling our differences and never going to bed angry with each other. The defense of marriage is a personal decision. It’s up to each couple, individually. We’ve learned as a nation that what it takes to defend the strongest bond two consenting adults can have runs much deeper than the color of their skin. And soon we’ll learn it runs deeper than their gender. It’s about the core of the two individuals and the indefinable bond and commitment they make to each other through honesty, respect, humility, faithfulness, patience, joy, and love. I will love Luke no matter what. But we demand to be shown the same respect that our federal government shows to straight married couples. Denials like the one we received are a step backward on the long road to equality, and they cannot be brushed aside.

For now, our country is still bound to the past by this archaic, pointless law. Even though I believe its days are numbered, every setback must be addressed. And Luke and I will do everything in our power to see DOMA’s demise as soon as possible. We will continue to fight for a green card for Luke, and for a complete review and decision of our case. We will insist on that interview where we can show any immigration officer what love, commitment, and marriage look like.

I know it’s only a matter of time before anti-gay discrimination is viewed as negatively as segregation and bans on interracial marriage. And teenagers who are bravely coming out of the closet today will be able to look forward to falling in love with and marrying any consenting individual they want — maybe even their high-school sweetheart. Just imagine that. In the meantime, we’re seeking equality. We believe the institution of marriage is strongest when entered into by loving, committed couples, regardless of sexual orientation. And we will continue to defend our marriage every day.

You guys are an inspiration. My husband and I had to leave the U.S.A. for Europe. We have been together 30 years. I am sick and tired of the old, tired consciousness caused by religion and small minds. Change cannot happen fast enough…

Another couple in the same situation. It is comforting (if not saddening also) to know that there are so many others trying to be patient and wait for these archaic laws to change. Meanwhile, our lives are on hold. Hoping the USSC is bold enough to state that DOMA is unconstitutional in their likely-June ruling. Cheers to everyone in the hold pattern as we are — may we find relief soon! David & Fabio in Denver

We think it is very important never to use the word “wait” because we are all about action. Telling stories and reaching millions of Americans as a result has changed policy as it effects our families in the immigration context and will bring an end to DOMA. Waiting, by contrast, involves no action at all. Of course, on some level we are all waiting, but we urge every couple to take action every day from now to June 28, just 63 days, to help defeat DOMA. We are tens of thousands of binational couples who have built a movement over the past two decades. We are not saddened when we read about the harm caused by DOMA, but inspired by the incredible lengths couples go to for their love, and we are motivated to stay active and never lose sight of the goal of full equality. In solidarity!

[...] that our petition had been denied. Why? Because we’re both men.” That was Brandon Melchiorre, explaining late last year his failed-attempt to get a green card for his spouse, Luke. “The denial letter [...]

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.